What is Hearsay Evidence?

Criminal defense lawyers are usually asked what is hearsay evidence? Hearsay is an objection that is very common during a hearing or trial. It is the most common, and both solicitors and an accused should understand it.

The Law and Hearsay Rule

The hearsay rule is contained in section 59 of the Evidence Act 1995. It provides that;

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

There are exceptions to this rule.

To understand the hearsay rule, consider the following example. If A witnessed a person hitting another person, and then told B about it. B cannot give evidence to establish the fact that a person hit another person. The only person that can give that evidence is A themselves.

Hearsay Definition

There is no specific definition of hearsay. We must look at the legislation and both intrinsic and extrinsic material to deduce the hearsay definition. More on this below.

Hearsay Meaning

Hearsay is generally any previous representation made outside Court. To understand the meaning of hearsay, we must look at the wording of the legislation and definitions provided to assist us in understanding the hearsay meaning.

The terms “previous representation” and “representation” are defined in the Dictionary to the Evidence Act. A representation includes statements and conduct that would convey to a listener, reader, or observer that the allegation is true. Silence in the face of an allegation can amount to a representation where it is reasonable to expect that the allegation would be answered by an explanation or denial.


A representation does not need to be relevant to the immediate facts in issue to be admissible; it can be relevant to other facts that are relevant to the facts in issue. However, if the evidence is used to prove the truth of the facts asserted in the representation, it is considered hearsay. If the evidence is used for another purpose, such as to show a previous statement by the maker of the representation that is inconsistent with later evidence, then it is not considered hearsay and is admissible.

Exceptions to the Hearsay Rule

There are numerous exceptions to the hearsay rule. They are as follows;


  • evidence relevant for non-hearsay purpose section 60;
  • criminal proceedings if maker unavailable section 65;
  • criminal proceedings if maker available section 66;
  • contemporaneous statements about a person’s health etc section 66A;
  • business records section 69;
  • contents of tags, labels and writing section 70;
  • telecommunications section 71;
  • Aboriginal and Torres Strait Islander traditional laws and customs section 72;
  • reputation as to relationships and age section 73;
  • reputation of public or general rights section 74; and
  • Interlocutory proceedings section 75.

It is important to note that the above exceptions apply only to first hand hearsay.


Evidence relevant for non-hearsay purpose section 60


This provision means that the hearsay rule does not apply to evidence given for a non-hearsay purpose. For example, if a witness makes a statement before giving evidence in court and there is an inconsistency between the statement and what the witness says in court, the statement may be used to prove the truth of any facts contained in it.


Maker unavailable section 65


If a witness is not present to give evidence. The party seeking to rely upon those previous representation must satisfy the court as a rule of evidence that the maker is ‘unavailable’. According to the Dictionary to the Evidence Act, a person is to be taken to be unavailable to give evidence about a particular fact if:


(a) the person is dead, or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or

(c) it would be unlawful for the person to give evidence about the fact, or

(d) a provision of this Act prohibits the evidence being given, or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

It has been held that where a witness refuses to give evidence, he is an unavailable witness. A witness who cannot remember an incident (for example, because of incompetence) is not an unavailable witness.


Maker available section 66


If the individual who made the complaint is available for cross examination, the hearsay rule may be modified. If another individual heard, saw, or otherwise understood the representation, and the facts are new to them, they will be admissible.


Business Records section 69


Business records are documents or other information that businesses use to keep track of their activities. However, only records kept in the ordinary course of business are considered business records. This does not include documents related to the products or marketing of the business, even if those documents purport to record activities of the business. An expert audit report on a company’s financial position can be considered a business record, even if it is a draft or incomplete.


Telecommunications section 71


The definition of “document” in this section is also relevant to this section, since a document purports to be a record of a telex, lettergram, or telegram, ss 161–162 make such claims (unless the facts are strong enough to raise concerns about the presumptions is raised).


Reputation as to relationships and age section 73


This provision allows for a wider range of matters to be proved by reputation, but does not include family history in real estate transactions. Family history does not mean family gossip, but rather encompasses date and place of birth, date and place of marriage, date and place of cohabitation over the last century, and place of work of ancestors of the maker of the representation. The information may be based on a conversation with only one blood relative.


Reputation of public or general rights section 74


This exception is wider than what is permitted by common law. It allows for representations made by persons who are now deceased or who had special knowledge or competence at the time the representations were made, even if the dispute has arisen since then. The evidence allowed by this exception has been described as being generally reliable.


Interlocutory proceedings section 75


Interlocutory proceedings are those that do not finally dispose of an action or dispute between parties. The legal effect of the order sought in the proceedings, rather than the practical effect, determines whether the proceedings are interlocutory. For example, if the orders sought are to have only an interim effect, the proceedings will be considered to be interlocutory.


A voir dire hearing pursuant to s 189 of the Evidence Act in connection with an objection to evidence raised is not an interlocutory hearing, although it does not necessarily require the identification of the “true source” of the information.

Essential Cases concerning Hearsay Rule

What is hearsay evidence can be best understood by looking at recent cases and their judgments.

  • Regina v Suteski (2002) 56 NSWLR 182 – Held: Where a witness refuses to give evidence, he is an unavailable witness;
  • Regina v Brown, Barwick and Brown [2006] NSWCCA 69 – Held: A witness who cannot remember an incident is not an unavailable witness;
  • Regina v Skipworth [2006] NSWCCA 37 – Held: Held that a complaint made 66 days after the event may be still ‘fresh in the memory’;
  • Regina v Gilbert Adam (1999) 47 NSWLR 267 Held: A view expressed by the trial judge that statement made 7 weeks after the event was still ‘fresh in the memory’ had ‘much to commend it’. 


  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.